Citation Nr: 0307601
Decision Date: 04/22/03 Archive Date: 04/30/03
DOCKET NO. 01- 04 531A ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to service connection for cold injury residuals
of the hands and feet.
REPRESENTATION
Appellant represented by: Alabama Department of Veterans
Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Hal Smith
INTRODUCTION
The veteran served on active duty from December 1946 to
December 1949 and from August 1950 to September 1951.
The current appeal arose from a November 2000 rating decision
of the Department of Veterans Affairs (VA) Regional Office
(RO) in Montgomery, Alabama. The RO denied entitlement to
service connection for residuals of cold injury of the hands
and feet.
The veteran provided oral testimony before the undersigned
Veterans Law Judge in June 2002, a transcript of which has
been associated with the claims file.
In January 2003 the Board undertook development of the
veteran's claim of entitlement to service connection for cold
injury residuals of the hands and feet. The additional
evidence obtained in this regard was associated with the
claims file.
FINDING OF FACT
The probative, competent medical evidence establishes that
the veteran's peripheral neuropathy of the feet and hands
resulted from cold damage which occurred during active
military service.
CONCLUSION OF LAW
Cold injury residuals to the hands and feet, diagnosed as
peripheral neuropathy, was incurred in or aggravated by
active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107
(West Supp. 2002); 38 C.F.R. § 3.303 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
A review of the service medical records (SMRs) discloses that
they are negative for complaints of, or treatment for, cold
injury to the hands and feet. This includes a separation
examination report from September 1951.
In March 2000 the veteran filed a claim for service
connection for residuals of cold injury to the hands and
feet. In an April 2000 statement, he indicated that he was
exposed to cold conditions while he was stationed in Korea,
but if he had reported this problem before separation from
service for compensation benefits, he would have had to stay
in service for another 30 days.
VA treatment records from 1999 through the present day
reflect treatment for foot and nail problems in early 2000.
In November 2000 the veteran underwent a special VA
examination to determine the nature of the conditions of his
hands and feet. He gave a history of being exposed to
extreme cold conditions while he was in Korea. This exposure
affected his hands and feet in that the skin would peel, and
he could never get them "warmed up." He said that he did
not receive any treatment at the time of the initial injury.
Now, his feet felt cold all of the time, and he had a
constant burning and pain with occasional shooting sharp pain
in the feet and occasionally in the hands.
The veteran said that he took medication for his circulation,
but he did not know the name of it. He had also been given
analgesic cream to put on his hands and his feet. He said
that this medication did not help to decrease the pain. He
stated that if he were exposed to cold or warm weather, he
would have increased pain and burning in his hands and feet.
The peeling of his hands occurred all of the time, and he had
constant numbness in his feet. He also had recurrent fungal
infections in the nails of his hands and his feet. The
diagnosis was peripheral neuropathy secondary to cold
exposure.
A November 2000 general medical examination report shows that
the veteran was diabetic. He also had hypertension,
arteriosclerotic heart disease with a history of atrial
fibrillation, chronic obstructive pulmonary disease, and mild
upper respiratory infection. The examiner also noted that
the veteran had onychomycosis.
At a personal hearing before the undersigned Veterans Law
Judge at the RO in June 2002, the veteran provided testimony
in support of his claim. He recalled that after exposure to
the cold during service, his hands and feet turned
"blackish" in color. They regained full and normal color
before separation from service. Currently, he experienced
aching and pain in his hands and feet which had increased in
severity. He said that he was not treated for his frostbite
during service.
In October 2002, the Board determined that additional
development was needed. In part, it was requested that the
examiner who conducted the VA medical examination in November
2000, provide an opinion as to whether it was at least as
likely as not that peripheral neuropathy diagnosed on cold
injury protocol examination was related to inservice cold
exposure. In a February 2003 response, the VA examiner noted
that she had reviewed the claims file prior to providing an
opinion. She noted that the veteran admitted to not seeking
medical attention for his cold exposure complaints. It had
been substantiated, however, that he had been stationed in
Korea and exposed to extreme weather conditions. While he
had other medical conditions that could cause neuropathic
pain, such as diabetes, the pain and discomfort described by
him was also consistent with residuals of cold exposure.
Therefore, she concluded that it was at least as likely as
not that his peripheral neuropathy was related to his cold
exposure in service.
Criteria
Service connection may be established for a disability
resulting from personal injury suffered or disease contracted
in the line of duty or for aggravation of preexisting injury
suffered or disease contracted in the line of duty. 38
U.S.C.A. §§ 1110, 1131 (West Supp. 2002); 38 C.F.R. § 3.303
(2002).
The United States Court of Appeals for Veterans Claims (CAVC)
has held that, in order to prevail on the issue of service
connection, there must be medical evidence of a (1) current
disability; (2) medical, or in certain circumstances, lay
evidence of inservice incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed inservice disease or injury and the present disease
or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999).
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (2002).
Where there is a chronic disease shown as such in service or
within the presumptive period under § 3.307 so as to permit a
finding of service connection, subsequent manifestations of
the same chronic disease at any later date, however, remote,
are service connected, unless clearly attributable to
intercurrent causes. 38 C.F.R. § 3.303(b) (2002).
This rule does not mean that any manifestations in service
will permit service connection. To show chronic disease in
service there is required a combination of manifestations
sufficient to identify the disease entity, and sufficient
observation to establish chronicity at the time as
distinguished from merely isolated findings or a diagnosis
including the word "chronic". When the disease entity is
established, there is no requirement of evidentiary showing
of continuity. When the fact of chronicity in service is not
adequately supported, then a showing of continuity after
discharge is required to support the claim. 38 C.F.R.
§ 3.303(b) (2002).
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the appellant prevailing in either
case, or whether a preponderance of the evidence is against a
claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3
(2002).
The Secretary shall consider all information and lay and
medical evidence of record in a case before the Secretary
with respect to benefits under laws administered by the
Secretary. When there is an approximate balance of positive
and negative evidence regarding any issue material to the
determination of a matter, the Secretary shall give the
benefit of the doubt to the claimant. 38 U.S.C.A. § 5107
(West Supp 2002).
Analysis
Preliminary Matter: Duty to Assist
The Board initially notes that there has been a significant
change in the law during the pendency of this appeal. On
November 9, 2000, the President signed into law the Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. 106-475, §
7(b), 114 Stat. 2096, 2099-2100 (2000), 38 U.S.C.A. § 5107
note (Effective and Applicability Provisions). Among other
things, this law eliminates the concept of a well-grounded
claim and supersedes the decision of the CAVC in Morton v.
West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v.
Gober, 14 Vet. App. 174 (2000) (per curiam order), which held
that VA cannot assist in the development of a claim that is
not well grounded.
This change in the law is applicable to all claims filed on
or after the date of enactment of the VCAA, or filed before
the date of enactment and not yet final as of that date.
VCAA, Pub. L. No. 106-475, § 7(b), 114 Stat. 2096, 2099-2100
(2000). 38 U.S.C.A. § 5107 note (Effective and Applicability
Provisions); see generally Holliday v. Principi, 14 Vet.
App. 280 (2001); see also Karnas v. Derwinski, 1 Vet.
App. 308 (1991).
On August 29, 2001, the final regulations implementing the
VCAA were published in the Federal Register. The portion of
these regulations pertaining to the duty to notify and the
duty to assist are also effective as of the date of the
enactment of the VCAA, November 9, 2000. 66 Fed. Reg. 45,
620, 45, 630-45, 632 (August 29, 2001) (to be codified at
38 C.F.R. § 3.159).
Where the law and regulations change while a case is pending,
the version more favorable to the appellant applies, absent
congressional intent to the contrary. Karnas v. Derwinski, 1
Vet. App. 308, 312-313 (1991). The Board is of the opinion
that the new duty to assist law has expanded VA's duty to
assist (e.g., by providing specific and expanded provisions
pertaining to the duty to notify), and is therefore more
favorable to the appellant. Therefore, the amended duty to
assist law applies. Id. In the case at hand, it is not
apparent that the veteran was notified of the new law.
38 U.S.C.A. § 5103 (West Supp. 2002); 66 Fed. Reg. 45,620,
45,630 (August 29, 2001) (to be codified at 38 C.F.R.
§ 3.159).
However, the favorable decision reached as to the question of
service connection reflects that the veteran is not
prejudiced by the Board's consideration of his claim pursuant
to this new law. Although the RO has not provided notice of
the VCAA or adjudicated his claim with this law in mind, the
Board finds no prejudice to the veteran in proceeding with
this case at this time, because the procedural actions of the
RO are in essential agreement with and adhere to the mandates
of this new law with respect to the duty to notify and the
duty to assist the appellant in the development of his claim.
See Bernard v. Brown, 4 Vet. App. 384, 393-394 (1993).
Due to the favorable decision reached by the Board, no useful
purpose would be served in remanding or deferring the matter
simply for initial consideration of the VCAA by the RO. This
would result in additional and unnecessary burdens on VA,
with no benefit flowing to the appellant.
Service Connection
In this case, there is no evidence of the precise time of
onset of foot and hand disorders other than that clinical
findings were first documented in 2000, many years after
service; following which time the veteran was diagnosed with
peripheral neuropathy secondary to cold exposure at the time
of VA examination in November 2000.
However, a VA examiner has reviewed the claims file and
opined that the veteran's current peripheral neuropathy of
the hands and feet is at least as likely as not the result of
inservice cold exposure.
Based upon the evidence of record, the Board finds
entitlement to service connection for residuals of cold
injury to the hands and feet is warranted. When all the
evidence is assembled VA is then responsible for determining
whether the evidence supports the claim or is in relative
equipoise, with the veteran prevailing in either event, or
whether a preponderance of the evidence is against the claim,
in which case the claim is denied. Gilbert, supra. As the
VA examiner's opinion represents competent evidence of record
which establishes a relationship between a currently
diagnosed disorder of the hands and feet and the veteran's
period of service, the Board finds entitlement to service
connection for a disorder of the hands or feet is warranted.
See Rabideau v. Derwinski, 2 Vet. App. 141 (1992).
ORDER
Entitlement to service connection for cold injury residuals
of the hands and feet diagnosed as peripheral neuropathy is
granted.
____________________________________________
RONALD R. BOSCH
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.